The Rocky Road to Energy Dominance: the Executive Branch’s Limited Authority to Modify and Revoke Withdrawals of Federal Lands From Mineral Production
ARTICLES
The Rocky Road to Energy Dominance: The
Executive Branch’s Limited Authority to Modify
and Revoke Withdrawals of Federal Lands from
Mineral Production
HILLARY M. HOFFMANN* & ROBERT L. GLICKSMAN**
ABSTRACT
The Trump Administration’s implementation of its America First Energy
Plan, whose goal was achieving U.S. “energy dominance,” heavily relied upon
public mineral development. Mineral development on federal lands is substan-
tially governed by statute. The statutory legal mechanisms by which the
Executive Branch can “open” or “close” an area of federal lands to mineral
development, whether onshore or offshore, are withdrawal, modification, and
revocation.
The Federal Land Policy and Management Act (“FLPMA”) and the Outer
Continental Shelf Lands Act (“OCSLA”) are the primary statutes that govern
onshore and offshore mineral development on over 2 billion acres of federal
lands. Both FLPMA and OCSLA authorize withdrawals, which the Executive
can use to place federal lands off limits to mineral development. FLPMA
also authorizes modifications and revocations of withdrawals, which can
remove constraints on such development. The Trump Administration used
both statutes in its quest to expand the areas that are available for private
mineral development through modification or revocation of withdrawals by
prior administrations.
The authority provided by FLPMA and OCSLA to determine the availability
of federal lands for mineral development is subject to a series of substantive
and procedural constraints. Because it regarded those constraints as undesir-
able shackles on the implementation of its mineral development policies, and
* Professor of Law, Vermont Law School; Visiting Robert H. McKinney Family Chair in
Environmental Law, Indiana University Robert H. McKinney School of Law (Fall 2020). © 2021,
Hillary M. Hoffmann & Robert L. Glicksman.
** J.B. & Maurice C. Shapiro Professor of Environmental Law, The George Washington University
Law School.
173
consistent with its expansive view of Executive Branch power in almost all con-
texts, the Administration was not content to rely on statutory authorization to
modify and revoke development-precluding withdrawals. Instead, it also
invoked nonstatutory, implied or inherent authority to open vast areas of federal
lands to oil and gas, coal, and other mineral development.
Notwithstanding the paucity of judicial precedent governing the parameters
of statutory and nonstatutory Executive Branch authority to reopen lands previ-
ously placed off limits to mineral development, significant questions surround
the legality of the Trump Administration’s efforts to alter the status of protected
lands and resources. Although it viewed downsizing or revocation of with-
drawals by previous administrations as a quick and effective way to open up
vast new acreage to mineral development, the legal basis for its actions is tenu-
ous at best.
This Article examines both statutory and nonstatutory mechanisms for deter-
mining the availability of federal onshore and offshore lands for uses such as
mineral exploration and development. It identifies the constraints that FLPMA
and OCSLA impose on revocation or modification of previous withdrawals. It
also explores the parameters of nonstatutory Executive mineral disposition
authority and assesses the legality of the significant Trump Administration with-
drawal modification and revocation efforts. It concludes that Congress has
eliminated any implied or inherent withdrawal, revocation, or modification
authority that may once have existed. It also finds that the most prominent and
controversial of the Trump withdrawal modifications and revocations exceeded
the authority the Executive Branch retains under FLPMA and OCSLA. As a
result, the Trump Administration’s unauthorized pursuit of energy dominance
should result in judicial invalidation.
TABLE OF CONTENTS
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
I. The History of Withdrawals and Revocations Prior to OCSLA and
FLPMA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
A. 1800-1900: Acquisition, Disposal, and the Pursuit of Manifest
Destiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
B. 1900-1950: Transitioning into Retention and Conservation, and
Growing Questions About Withdrawal and Revocation Authority . . 188
II. Congressional Attempts to Organize the Chaos: the Legislative History of
the Outer Continental Shelf Lands Act and the Federal Land Policy and
Management Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
A. Offshore Public Mineral Development and OCSLA . . . . . . . . . . . . 194
1. The Origins of the Outer Continental Shelf Lands Act . . . . . . 194
2. OCSLA’s Limited Delegation of Presidential Withdrawal
Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
174 THE GEORGETOWN ENVTL. LAW REVIEW [Vol. 33:173
B. Onshore Public Mineral Development and the Development of
FLPMA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
1. FLPMA’S Legislative History – The Public Land Law Review
Commission Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
2. FLPMA’s Limited Delegation of Secretarial Withdrawal and
Revocation Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
III. Chaos Further Resolved: Congress’s Limited Delegations of Authority
Over Withdrawals in OCSLA and FLPMA . . . . . . . . . . . . . . . . . . . . . . 217
A. Nonstatutory Presidential Revocations on Federal Lands: A Relic of
the Past . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
B. What Remains: Limited Executive Branch Authority to Make,
Modify, or Revoke Withdrawals of Federal Lands Under OCSLA
and FLPMA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
INTRODUCTION
The Trump Administration’s energy legacy depended heavily on revoking or
diminishing previous administrations’ withdrawals that protected federally
owned land from exploration and development of minerals such as oil, gas, and
coal. The Administration made its zeal for achieving what it later dubbed “energy
dominance”
1
clear almost immediately after President Trump took office in
January 2017. In March of that year, he issued an executive order requiring fed-
eral agencies to review actions that “potentially burden the development or use of
domestically produced energy resources,” particularly fossil fuel and nuclear
energy resources.
2
The order directed the Secretary of the Interior to “lift any and
all moratoria on Federal land coal leasing activities.”
3
This language reflected the
Trump Administration’s response to an Obama-era Secretarial order halting
review of new applications for federal coal leases pending the preparation of a
programmatic environmental impact statement (“EIS”) under the National
Environmental Policy Act (“NEPA”).
4
Within days, President Trump’s first
Secretary of Interior, Ryan Zinke, revoked the Obama coal-leasing ban order,
1. See White House Fact Sheet, President Donald J. Trump Is Unleashing American Energy
Dominance (May 14, 2019), available at https://perma.cc/849Q-65E9; Justin Worland, President Trump
Says He Wants ’Energy Dominance.’ What Does He Mean?, TIME (June 29, 2017), https://perma.cc/
SE2M-LZX7 (noting that President Trump’s “energy dominance” agenda included “a slew of initiatives
aimed at speeding up production of oil, natural gas and coal . . . . Trump has described his policies as a
dramatic shift in direction from the Obama years, [which he] described . . . as ‘eight years of hell’ that
included ‘massive job-killing barriers to American energy development.’”).
2. Exec. Order No. 13783, Presidential Executive Order in Promoting Energy Independence and
Economic Growth, §§ 2(a) & (b), 82 Fed. Reg. 16093, 16093 (Mar. 28, 2017). The Order defined burden
to mean “unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting,
permitting, production, utilization, transmission, or delivery of energy resources.” Id. § 2(b).
3. Id. § 6, 82 Fed. Reg. 16096.
4. Secretarial Order No. 3338, Discretionary Programmatic Environmental Impact Statement to
Modernize the Federal Coal Program §§ 4, 5a (Jan. 15, 2016), https://perma.cc/GMH3-KDPN.
2021] THE ROCKY ROAD TO ENERGY DOMINANCE 175
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